William Julié, Elena Moreno and Amélie Beauchemin had the pleasure of co-writing an article, recently published by International Comparative Legal Guides (ICLG) in their Sanctions Laws and Regulations Guide 2027, which examines the European Commission and the High Representative’s proposal of 9 July 2026 for a new EU sanctions regime targeting migrant smuggling, human trafficking and other forms of organised crime.
The proposal reflects a growing trend towards using restrictive measures to address conduct that already falls within the scope of criminal law in EU Member States. While sanctions are, by nature, intended to be preventive rather than punitive, their increasing reliance on alleged criminal conduct raises important questions about the boundaries between the two.
In this article, the authors explored some of the key legal and institutional challenges arising from this development, including:
- The growing overlap between sanctions and criminal law, particularly where listings are based on past criminal convictions or ongoing criminal investigations;
- The blurred distinction between preventive and punitive measures, and the implications of imposing sanctions in response to conduct that may already have been addressed through criminal proceedings in Member States;
- The use of Article 215 TFEU and the potential circumvention of the ordinary legislative procedure and the European Parliament’s role under Article 83 TFEU;
- The risks to fundamental rights and procedural safeguards, including legal certainty, the standard of proof, the presumption of innocence and the principle of ne bis in idem;
- The political nature of sanctions listings and the possibility that broader diplomatic and foreign-policy considerations may influence determinations concerning alleged criminal conduct.
The central question is whether the expansion of EU sanctions into areas traditionally governed by criminal law (and Member States) can be reconciled with the fundamental principles and procedural guarantees of the EU legal order.